Wicked Stupid Laws: Former Spouses Who Cohabitate After Divorce "Guilty of Adultery" in Massachusetts

Divorce lawyer Kimberley Keyes examines an outdated Massachusetts law that
criminalizes cohabitation by former spouses.

Attorney Owens recently blogged about how the pointless and
outdated “divorce nisi” law meant that divorcing spouses in Massachusetts would lose ability to
agree to tax-deductible alimony 90 days earlier than the rest of the country.
Today, we are highlighting what is – arguably – an even stupider
Massachusetts law,
which provides:

Persons divorced from each other cohabiting as husband and wife or living
together in the same house shall be held to be guilty of adultery.”

As Attorney Owens noted in his recent blog, adultery remains a felony in
Massachusetts:

This is the state where adultery by a married person - something generally
ignored by most probate court judges in divorce cases - is still punishable with
prison time as a
felony in a dusty state statute, no one has bothered to change.”

Of course, even if you think that adultery – i.e. a married person
having sexual intercourse outside of their marriage –
should be a crime, it is hard to understate the incredible stupidity of
Ch. 208, s. 40, which states that any divorced people who live together are guilty of
adultery, even if the divorcees have no sexual relationship whatsoever.

Surely, This Stupid Law Does Has No Effect on Real People, Right? Wrong!

Unsurprisingly, our office has encountered
divorce cases in which divorced spouses who co-own a home wish to continue living
together in the home due to economic pressure and for the sake of their
children. Such divorced spouses are not attempting to reconcile. They
are not “living together as husband and wife” after the divorce.
Indeed, they have no sexual relationship whatsoever. Nevertheless, we
have been told by at least one judge that a divorce agreement that contemplates
former spouses sharing a home they co-own – even as roommates –
is “illegal” and cannot be enforced due to
Ch. 208, s. 40.

Just to repeat – and it bears repeating – this Massachusetts
law makes it a felony for former spouses to live in the same home. One
way to illustrate the utter silliness of this law is to contrast it with
another Massachusetts statute,
Ch. 208, s. 24, which provides:

After a judgment of divorce has become absolute, either party may marry
again as if the other were dead.”

In other words, after a divorce is completed, each spouse may remarry as
if the other were
dead. But if they live together, these same ex-spouses are guilty of adultery.

Cowardly Legislators Leave Terrible Laws on the Books

As Attorney Owens covered in his
recent blog, silly Massachusetts laws range from the pointless “nisi”
law to the sodomy law that punishes
consensual sex acts with 20 years in prison to the state’s
blasphemy law to our
“fornication” law, which punishes non-marital sex with three months in jail. Some morality-based
laws, like the anti-sodomy statute, have been defanged by appellate courts
when it comes to
consenting adults, but the statute is still used in sexual assault cases.

As noted in this 2012 Boston Globe article, most states purged such laws
from their books many years ago:

Most states have purged their codes of laws regulating cohabitation, homosexual
sodomy, and fornication — sex between unmarried adults — especially
after the 2003 Supreme Court decision in Lawrence v. Texas that made sexual
activity by consenting adults in private legal across the country. But
the question of how that ruling affects adultery remains unanswered because
others may be harmed by adultery — a spouse and children. Several
courts have alluded to the constitutionality of adultery laws since the
Lawrence decision.”

So why hasn’t Massachusetts done the same? The Globe article had
an answer for that too:

Some law professors, including Joanna L. Grossman of Hofstra University,
said one reason that adultery laws remain on the books is that getting
rid of them would require politicians to declare their opposition to them,
which few would do.”

Sen. William Brownsberger: Changing Old Morality Laws Would Upset “Values”

Recently, Masslive profiled the efforts of Byron Rushing, D-Boston, who
has proposed a variety of bills that would repeal outdated Massachusetts
law criminalizing morality. Rushing’s efforts have been largely thwarted by State Sen. William
Brownsberger, D-Belmont, the co-chair of the Legislature's Judiciary
Committee.

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